George Wilson Scott V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Brodie,Lord Bonomy |
| Neutral Citation | [2011] HCJAC 110 |
| Docket Number | XC360/09 |
| Published date | 01 November 2011 |
| Year | 2011 |
| Court | High Court of Justiciary |
| Date | 20 November 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Bonomy Lord Brodie Lord Wheatley | [2011] HCJAC 110 Appeal No: XC360/09 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST CONVICTION AND SENTENCE by GEORGE WILSON SCOTT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Macara, Q.C., Solicitor Advocate; Nicholson; Beltrami & Co
Respondent: P Ferguson, Q.C., A.D.; Crown Agent
20 October 2011
Background
[1] On 24 April 2009 the appellant was convicted by a majority verdict of a charge in the following terms:
"on 12 September 2007 at the Eastgate Centre, Eastgate, Inverness you did assasult John Morrison, formerly residing at 31 Dalneigh Road, Inverness and did inject him with an excessive quantity of Diamorphine...and you did murder him".
The jury deleted from the libel the words "rob him of a sum of money". He was sentenced to life imprisonment with a punishment part of 13 years.
[2] In his submissions to the Court today Mr Macara for the appellant helpfully summarised the ground of appeal against conviction as being that the trial judge misdirected the jury as to what constituted assault, in particular by directing them that, if they were satisfied that the appellant injected the heroin into the deceased, that was assault. That misdirection was fundamental since it must inevitably have caused the jury, in addressing the issue whether the appropriate conviction was for murder or culpable homicide, to concentrate their attention on matters unfavourable to the appellant's case, which was that, at the very worst, he should be convicted of culpable homicide.
[3] The deceased and the appellant were neighbours and were friendly. They spent the day in each other's company, consuming alcohol much of the time. Eventually they were in the Chieftain public house where they were joined by Carl Howley and Samantha Dickson, who were partners, and both of whom were abusers of heroin and known to the appellant. The appellant maintained that he had been an abuser of heroin but had stopped. While in the Chieftain the appellant and Carl Howley went to the gents' toilet and each of them injected heroin. Thereafter Howley went outside with Dickson and helped her to inject heroin. All four then played pool. The appellant and the deceased continued to drink alcohol while the other two drank soft drinks. Later in the afternoon they went to a bookmakers. The deceased was asked to leave because he was so intoxicated that he fell off a stool.
[4] All four subsequently walked to the Eastgate Shopping Centre. There the appellant, Howley and Dickson went into the disabled toilet and each took heroin by injection. The appellant and Howley each injected himself; Howley then assisted Dickson to inject heroin. CCTV images showed the deceased, apparently intoxicated, leaning against a wall opposite the door to the disabled toilet. Thereafter he staggered across the corridor to the door and was admitted to the toilet. Although he smoked cannabis on a regular basis, he did not abuse heroin. Both Howley and Dickson gave evidence that they were aware that the deceased did not abuse heroin and that that was obvious to them. Within the toilet the appellant prepared an injection of heroin. Howley said that at that time in Inverness the heroin on the streets was stronger than normal; for that reason he and Dickson had reduced the quantities taken in each injection. The injection prepared by the appellant used a large quantity of the powder. Howley described the resultant brew as being coffee-coloured or like "devil's blood". It was much darker than the colour of the mixture that each of the other three had injected. Howley told the appellant not to inject the deceased because he was not an abuser of heroin and the mixture was too strong. The appellant said that he would use only some of the mixture for the deceased and would use the remainder himself. The deceased held out his arm and the appellant injected the entire contents of the syringe into his arm, despite what he had said to Howley.
[5] In the Note of Appeal it is acknowledged that the jury must have rejected the evidence of the appellant denying that he had administered the injection, and accepted the evidence of Howley and Dickson that it was the appellant who had injected the deceased with heroin. It is also acknowledged that the jury must have accepted certain controversial aspects of the evidence of Howley and Dickson in relation to the apparent strength and quantity of the heroin injected into the deceased, and also that the appellant was warned not to inject the deceased with heroin.
[6] It is also stated in the Note of Appeal that there was undisputed evidence that the deceased wished someone to inject him with heroin. Other significant features of the evidence are then set out as follows:
"The disabled toilet within Eastgate Centre, Inverness was occupied by the appellant and Crown witnesses Carl Howley and Samantha Dickson. The jury must have accepted that these individuals were engaged in 'cooking up' the heroin that they had in their possession. There was clear evidence that the deceased knocked on the door of the toilet to demand access. The witness Samantha Dickson testified the deceased had said 'Stick it in me, stick it in me' in relation to the administration to him of the fatal dose of heroin. These factors and others raise the issue of consent in relation to the actions of the deceased".
[7] The further point is made in the Note of Appeal that, in deleting any reference to robbery, the jury must have accepted the evidence of the appellant, or at least rejected the evidence of Howley and Dickson. However it is plain from the report of the trial judge that there were a number of reasons why the jury might have been left in reasonable doubt about the allegation of robbery. In the end that was of no significance to the argument before us. While it might be said that, if the jury had found the appellant guilty of robbery, that would provide support for the view that their finding of guilty of murder reflected a determination that the appellant had intended to kill the deceased, the issue presented to us does not turn on whether the jury considered that the appellant meant to kill the deceased or acted with the necessary degree of wicked recklessness.
Submissions for Appellant re Conviction
[8] The starting point for Mr Macara's submission was that the trial judge went too far and erred by directing the jury that, if they concluded from their assessment from all of the evidence that the appellant administered the injection to the deceased in the disabled toilets at Eastgate Centre, they must reach the conclusion as a matter of law that he was guilty of assault. The trial judge had initially directed the jury properly by explaining the need for evil intent, but had then adopted phraseology which failed...
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